Ontario and other Canadian jurisdictions have long-lacked comprehensive legislation that addresses who is authorized to access or manage a deceased person’s digital assets. To date, there is no law in this province or federally which addresses ownership and control over a deceased person’s digital assets (accounts, virtual property, social media), or what rights fiduciaries like estate trustees have to access such assets. Model legislation, in the form of the Uniform Access to Digital Assets by Fiduciaries Act, was proposed over 5 years ago, but has yet to be formally adopted in any jurisdiction, outside of Saskatchewan.
This has been flagged by many commentators as a concerning legislative gap, particularly as individuals amass more and more digital assets with increasing value (see: crypto currency, NFTs, viral social media, etc.). The paucity of legislative clarity has resulted in massive headaches for fiduciaries like estate trustees who need to access or secure a deceased loved one’s digital assets; in some cases requiring a Court Order just to access the digital accounts (including basic information such as the deceased’s photos, emails) even when they are armed with clear proof of death and fiduciary authority under a will.
Apple’s latest iPhone update takes steps toward resolving this issue. On Monday December 13, 2021, Apple released its iOS 15.2 update which, in part, includes a “Legacy Contact” feature which allows iPhone users to designate individual(s) (Legacy Contacts) who may access the user’s Apple Account when they die. Essentially, the Legacy Contact feature allows iPhone users to designate the beneficiary(ies) of their Apple Account. Users can add up to five people as their “legacy contacts” who will be able to access the user’s Apple Account when the user dies.
Legacy contacts, once named, are then provided with an ‘access key’. Upon the death of the original account holder, legacy contacts may upload the access key to Apple’s webpage (digital-legacy.apple.com) along with a certificate of death, which is then reviewed by Apple. Following a review and approval by Apple, the legacy contact may create a new password and is provided with access to the deceased’s Apple Account and all the valuable data therein.
This brand new tool could provide much needed relief to executors or surviving friends or family who are looking to access a deceased person’s digital information. In the past, a court order may have been required to gain such access. Apple’s Legacy Contact feature appears to simplify that process, allowing iPhone users to designate the beneficiaries of their accounts, which designations will be recognized and honoured by Apple. Importantly, iPhone users should take steps to inform their chosen “Legacy Contacts” that they are named as such.
It will be interesting to see this new Apple feature in use, and whether other virtual platforms adopt similar designation tools.